1. The case originated in an application (no.
47986/99) against the Republic of Poland lodged with the European Commission
of Human Rights (“the Commission”) under former Article 25 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Polish national, Mr Jan Gossa (“the applicant”),
on 5 January 1998.

2. The Polish Government (“the Government”)
were represented by their Agent, Mr J. Wołąsiewicz of the Ministry
of Foreign Affairs.

3. The applicant alleged, in particular, that
he had not received a fair trial in violation of Article 6 §§ 1 and
3 (d) of the Convention.

4. The application was transmitted to the Court
on 1 November 1998, when Protocol No. 11 to the Convention came into
force (Article 5 § 2 of Protocol No. 11).

5. By a decision of 25 October 2005 the Court
declared the application admissible.

6. The Chamber decided, after consulting the parties,
that no hearing on the merits was required (Rule 59 § 3 in fine).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

7. The applicant was born in 1953 and lives in
Łódź.

8. On 4 April 1994, at 2.40 a.m. officers of the
Polish Border Guards (Straż Graniczna) arrested a certain A.I., a German national
of Polish origin, on suspicion of having stolen a car “Mercedes 200E”
in which he was travelling to Belarus. The arrest took place after a
routine control of his documents on the Polish-Belarusian border. The
officers, having learnt that the car had been hired from the company
“Sixt-Budget” in Germany, and having found that, according to their
records, A.I. had previously several times crossed the Polish-Belarusian
border driving different cars, asked the Kołbaskowo Border Guards (a
check-point at the Polish-German border) to inquire whether the car
was being sought by the German police. It was soon confirmed that since
2 April 1994 the German police had been looking for that car, which
had been reported as having disappeared. A.I. was later taken into police
custody and brought to the Sokółka District Police Station (Komenda Rejonowa Policji).

9. On 5 April 1994, at 8 a.m., the applicant and
a certain J.S.-T., a national of the United States of America, reported
to the Sokółka District Police Headquarters. They presented a copy
of the contract concluded by J.S.-T. with the “Sixt-Budget” company,
from which it appeared that she had hired the car in question for the
period from 2 to 10 April 1994.

10. On the same day the applicant was arrested.
Subsequently, A.I., J.S.-T. and the applicant were questioned by the
police as suspects. A.I. was charged with aiding and abetting an unknown
person to sell a stolen car. The applicant was charged with aiding and
abetting a car theft. J.S.-T. was charged with attempted car theft.

11. A.I. did not confess. He stated that he took
odd jobs as a driver at the Świecko border station (on the Polish-German
border). He admitted that he had intended to bring the car to Belarus
but denied knowing anything about the theft of the car. He maintained
that a woman, whose first name was “Elżbieta” and for whom he had
already worked, had hired him to drive the car in question from Łódź
to Belarus, i.e. to the Minsk airport. He had been paid 500 Deutsche
marks (DM) for that service. On 3 April 1994, at about 5 p.m. he had
met “Elżbieta” in Łódź. She had been accompanied by another
woman resembling a Philippine national. She had handed over to him the
car, its documents and the keys.

12. The applicant did not confess and stated that
he had known J.S.–T. for some 8 years. He had met her in Łódź on
3 April 1994. She had come in a “Mercedes” that had been hired.
They had decided that they would drive the applicant’s car in Poland
and she had left the “Mercedes” in a guarded car park. On the same
day A.I. had asked him to lend him his car. The applicant, having first
asked J.S.-T. for her permission, had lent him the “Mercedes” hired
by her. He had handed the car documents and keys to A.I. Later, he had
driven J.S.-T. to her friend, P.M. On 4 April 1994, at about 8 p.m.,
A.I.’s father had come to the applicant’s home and had told him
that A.I. had been arrested when crossing the border since it was suspected
that the car in question had been stolen. The applicant had informed
J.S.–T. and P.M. of what had happened and the three of them had come
to the Sokółka District Police Station to present the car documents
and explain the situation.

13. J.S.-T. did not confess and stated that, together
with P.M., she had flown to Frankfurt am Main from San Francisco on
2 April 1994. She had hired the car in question at Frankfurt airport.
She had crossed the Polish border in Zgorzelec (“Goerlitz” in German)
and had met the applicant there, as had been arranged previously. The
applicant, P.M. and she had gone to Łódź. They had arrived there
at about 10-11 a.m. The applicant had taken the car and the car documents
from her in order to park it in a safe place. On 4 April 1994 at about
11 p.m. she had learnt from the applicant that the car had been seized
by the police as having been stolen and that they had to go to Sokółka
to explain the situation. J.S.-T. denied having given the applicant
any permission to use or to lend the car. She maintained that she did
not know either A.I. or a woman called “Elżbieta” and that she
had not been at the Świecko border station.

14. A.I and the applicant were subsequently confronted
with each other. A.I. maintained his version of events, refused to give
any further evidence and asked the prosecution to hear evidence from
the owners of the car. The applicant denied handing over the car to
A.I. He explained that J.S.-T. had done it. She had been accompanied
by an unknown woman and P.M. He stated that J.S.-T. had asked him to
find her a driver who could deliver the car to Minsk or Vilnius. He
had recommended A.I. to her and had helped her to contact him.

15. On 6 April 1994 the applicant was remanded
in custody until 5 July 1994. On the same day he was heard by the prosecutor.
He did not confess. In contrast to what he had originally stated, he
maintained that he had not known J.S.-T. before the events in question.
He had previously known only P.M, who had called him from the USA to
tell him that he would be coming to Poland on a tourist tour. The next
day P.M. had called him from Łódź and they had fixed a meeting. Only
then had the applicant met J.S.-T. for the first time. P.M. and J.S.-T.
had come in the “Mercedes”. They had asked the applicant to deliver
the car to Minsk or Vilnius. P.M had said that J.S.-T. had been the
owner of the car. The applicant had told them that he could not deliver
the car but promised to give them the name of a person who would do
so. To this end, he had gone to A.I.’s home and told him of their
proposal. A.I. had provisionally agreed. He had arranged a meeting.
They had met at a car park. P.M. had come in company with J.S.-T. and
a woman called “Elżbieta” or “Ewa”. The applicant had introduced
A.I. to them. A.I. and the latter woman had gone to the car. The applicant
had not, however, been present when they had been talking and when the
keys and documents had been handed over to A.I. Nor had he known anything
about the payment for A.I. He had learnt from A.I.’s father that A.I.
had been arrested. Subsequently, he had called P.M. and complained to
him of what had happened. He had reminded P.M. and
J.S.-T. that they had claimed that the car had not been stolen and asked
them to report to the Sokółka District Police Headquarters and explain
the situation. They had gone to Sokółka on 5 April 1994. During the
conversation with the police officers P.M. had left in the applicant’s
partner’s car.

16. On 6 April 1994 the prosecutor ordered that
J.S.-T. be detained on remand. She refused to testify.

17. On 6 April 1994 A.I. testified before the
prosecutor. He did not confess. He stated that on 3 April 1994 the applicant
had come to his father’s home in Łódź and had offered him payment
for driving a car, hired by the applicant’s acquaintance, to Minsk.
He had agreed. They had later met at the car park next to the railway
station. The applicant had been in the company of two women: a woman
with, in his words, a “foreigner’s look” and “Elżbieta”,
the woman that he had some time earlier met at the Świecko border station.
He had been given the car documents and keys. They had agreed to pay
him DM 500. He had been assured by the applicant and J.S.-T. that the
car had been lawfully in their possession. On the same day, after obtaining
A.I.’s testimony, the prosecutor ordered that he be remanded in custody.

18. On 22 April 1994 the applicant was released
on bail.

19. On 5 May 1994 J.S.-T. decided to testify in
the presence of her lawyer and an interpreter. She confessed. She stated
that she had flown to Frankfurt am Main from the USA together with her
friend, P.M. She had hired the car in question for the period from 2
to 10 April 1994. P.M. had proposed a visit to Poland. She agreed. On
2 April 1994, at 8.30 p.m. they had arrived in Łódź. When they had
been parking the car, they had met the applicant. She had not known
him before. P.M. had introduced him as a friend of his. The applicant
had come with them to P.M.’s home. He had proposed “doing business”,
that is to say, taking the car to a former Soviet Union country with
the help of a “trustworthy person” in order to sell it and, afterwards,
report a “theft” to the police. P.M. had protested but she had agreed.
The applicant had gone to find such a “trustworthy person” and had
later rung her to inform her of a meeting place. She had gone there
with P.M. The applicant had waited with an unknown man. She had given
the car, its documents and the keys to that man. On 4 April 1994 the
applicant had informed her that the driver had been arrested. He had
said that they should “save this man” and asked her to go with him
to explain that what had happened had been a “mistake”. P.M. had
gone with them to Sokółka as an interpreter. J.S.-T. admitted that
she had given false testimony on 5 April 1994. She stated that she regretted
it.

20. On 6 May 1994 the Sokółka District Prosecutor
released J.S.-T. on bail. The prosecutor had regard, inter alia, to J.S.-T.’s confession and the fact that all
necessary evidence had already been obtained. On the same day J.S.-T.
left for the United States and, since then, her whereabouts have been
unknown.

21. On 9 May 1994 the Sokółka District Prosecutor
appointed two experts in psychiatry in order to establish whether the
applicant could be held criminally responsible for his acts. On 16 June
1994 the Choroszcz Psychiatric Hospital informed the prosecutor that
the applicant had failed to appear for his examination. By a letter
of 22 June 1994 the applicant was informed by the prosecutor that his
failure to undergo a psychiatric examination might be treated as an
attempt to obstruct the proceedings. On an unspecified later date the
applicant underwent the examination in the Choroszcz Psychiatric Hospital.
On 8 August 1994 the psychiatric experts submitted their report to the
prosecutor.

22. On 21 September 1994 the District Prosecutor
laid additional charges against the applicant. On the following day
the applicant and A.I. were summoned to give evidence. They refused
to testify. On the same day the applicant was given access to the case
file. On 23 September 1994 the prosecutor terminated the investigation
against the applicant, A.I. and J.S.-T.

23. On 3 October 1994 the Sokółka District Prosecutor
(Prokurator
Rejonowy) filed a bill of indictment with the Łódź Regional
Court (SądWojewódzki).
J.S.-T. was charged with attempted car theft. The charge was formulated
in the following way:

“... that on 3 April 1994 in Łódź, acting
together with [the applicant] and A.I. and with intent to appropriate
a “Mercedes- Benz 200E” car valued at 850,000,000 [old] Polish zlotys,
which was entrusted to her under a rental agreement concluded with the
company “Sixt-Budget” in Germany, instructed through [the applicant]
A.I. to deliver [that car] to the C[ommonwealth of] I[ndependent] S[tates]
with a view to selling it but she did not complete the offence because,
on 4 April 1994, A.I. was arrested on ... the Polish border when driving
the car in question...”

24. The applicant was charged with handling stolen
goods of a significant value. The charge was formulated as follows:

“... that on 3 April 1994 in Łódź, acting
together and in agreement with A.I. assisted J.S.-T. to sell a “Mercedes-Benz
200E” car registered under number MUD 9552 and valued at 850,000,000
[old] Polish zlotys ...[and, in particular] knowing that the car had
been obtained by crime, hired A.I. to deliver that car to the C[ommonwealth
of] I[ndependent] S[tates] ...”

25. A.I. was charged with handling stolen goods
of a significant value. The charge was phrased as follows:

“... that on 3 April 1994 in Łódź, acting
together and in agreement with [the applicant] assisted J.S.-T. to sell
a “Mercedes-Benz 200E” car registered under number MUD 9552 and
valued at 850,000,000 [old] Polish zlotys ... [and, in particular] knowing
that the car had been obtained by crime, took it over from [the applicant]
in order to deliver it to the C[ommonwealth of] I[ndependent] S[tates]
...”

26. On 10 January 1995 Łódź Regional Court
severed the charge against J.S.-T. from the case and stayed the proceedings
against her.

A. The original trial

27. On 10 February 1995 the trial began. A.I.
was heard first. He pleaded not guilty and refused to testify before
the court. He confirmed the statements he had made in the investigation
but explained that it had been the applicant who had contacted him with
J.S.-T. He added that he had met J.S.-T. for the first time at the car
park where she had given him the car, its documents and the keys. She
had been in the company of “Elżbieta”, for whom he had worked previously.
A.I. further admitted that, when giving evidence for the first time,
he had not revealed certain facts.

28. The applicant also pleaded not guilty and
gave evidence. His testimony was consistent with that given on 6 April
1994. He confirmed the statements he had made during the confrontation
with A.I. on 5 April 1994. However, he departed from the statements
he had made during the first questioning on 5 April 1994.

29. On 19 May 1995 the Regional Court asked, apparently
for the second time, the Embassy of the United States of America in
Warsaw for information on whether J.S.-T. indeed lived at the address
she had supplied to the prosecution. The Regional Court emphasised the
urgent nature of its enquiry. In its reply of 2 June 1995, the Consular
Department of the Embassy informed the Regional Court that, according
to their knowledge, J.S.-T. was not at the time staying in Poland.

30. Later, the Regional Court heard evidence from
A.I.’s father and M.A., the officer who had arrested A.I. on the border.
The applicant’s partner was also called as a witness but she refused
to testify.

31. The Łódź Regional Court held hearings on
31 March, 16 May and 3 July 1995. On the latter date the Regional Court
acquitted the applicant and A.I. The reasoning for the verdict read,
in so far as relevant:

“In the course of the trial it was established
that J.S.-T. was not residing in the territory of Poland (see the letter
of the Consular Department of the Embassy of the United States of America,
p. 482). For that reason, the statements that she had made in the investigation
were read out as witness testimony.

Assessing the above-mentioned testimony as well
as the remaining material before it, this court has found the following:

The whole structure of the bill of indictment
was in principle based on J.S.-T.’s confession that she had made in
the investigation. On account of mistakes committed already at the investigative
stage and having regard to general guarantees [for a defendant] laid
down in the Code of Criminal Procedure, it has to be considered that
this evidence does not suffice to find the defendants guilty of the
offences with which they were charged.

Even without questioning the prosecutor’s decision
to release J.S.-T. ... which, in the context of the letter from the
Consular Department of the American Embassy appears to have a dubious
basis, it is impossible not to question the statement made in the reasoning
for that decision, namely that the evidence collected was [at that time]
complete. In passing, it should be noted that the inquiries were still
under way and the investigation itself was terminated on 23 September
1994. Having regard to the material gathered up to that stage, including
evidence given by [J.S.-T.] it was simply necessary to confront [her]
with her co-suspects, in particular with [the applicant].

That, however, was not done and, for all practical
reasons, could not be done at the trial stage. Had it been done, it
would have been possible to clarify a number of facts which, maybe even
in J.S.-T.’s absence, would have enabled [the court] to determine
properly the charges against the other defendants.

For procedural reasons, J.S.-T.’s statements
are to be considered as witness testimony and as such are to be assessed.
Yet when assessing [her statements], it must be taken into account that
they do not have the quality of [witness] testimony given under pain
[of being criminally liable for perjury] but are the statements of a
suspect with all the consequences thereof, including the possibility
that J.S.-T., for the reasons only known to herself, did not tell the
truth or the whole truth.

Moreover, this part of the evidence was not heard
directly by the court and this, for obvious reasons, made it impossible
for it to verify and assess fully [her statements]. Assessing this evidence
from the point of view of its credibility, it cannot be said to have
the quality of consistency from the beginning of the proceedings.

In view of the foregoing, this court, finding
it impossible for it to verify this evidence, cannot rely on it to conclude
that the defendants’ guilt has been proved beyond a reasonable doubt.

It must also be noted that this evidence concerns
mainly [the applicant]. There is no direct indication that A.I., when
crossing the border..., knew that the car had been obtained by crime.
...

The testimonies of both defendants cannot be
considered credible because they [changed their statements], although
in their final version presented at the trial they were closely consistent.
... However, the defendants’ and, in particular, A.I.’s guilt is
not obvious even on the basis of their testimonies. ...

Having regard to the foregoing and to the fact
that there is no convincing and trustworthy evidence of the defendants’
guilt, this court has acquitted them. ...”

32. The Sokółka District Prosecutor appealed
on 11 October 1995, alleging in essence that the trial court had wrongly
assessed the evidence of the defendants.

33. On 19 January 1996 the Łódź Court of Appeal
(Sąd Apelacyjny)
quashed the acquittal and remitted the case to the Sokółka District
Prosecutor. It ordered that a further investigation be carried out.

34. On 30 April 1996 the applicant’s defence
counsel was notified that the applicant would be given access to the
case file on 17 May 1996. On 16 May 1996 the applicant requested the
Sokółka District Prosecutor to give him access to the case file in
another part of the country. The applicant did not appear before the
prosecutor when summoned. On 29 May 1996 the prosecutor decided to stay
the investigation. On 4 June 1996 the prosecutor ordered that the applicant
be detained for a period of 7 days in view of his failure to appear
before the investigating authority. The prosecutor also issued a wanted
notice in respect of the applicant. On 11 June 1996 the applicant appealed
against the detention order. On 9 September 1996 he was arrested. On
13 September 1996 the applicant was brought before the Sokółka District
Prosecutor and was given access to the case file. He was released later
on that same day.

35. In the meantime, the applicant, on his own,
tried to establish the whereabouts of J.S.-T. through the Consulate
General of the Republic of Poland in Los Angeles. On 7 October 1996
the Consul wrote to him a letter, which read, in its relevant part:

“... we should inform you that we cannot help
you because the supplied address of the person you search for does not
exist in the San Francisco address directory (on 40th street
there are no such low numbers and the postal code concerns another state).
You are asked to check the address once again; perhaps the correct address
is in the Sokółka District Court’s possession. If the person that
you search for has changed her address we will certainly not be able
to find her because in the United States there are no registers of residents
and no duty to register one’s place of residence. ...”

36. The charge against A.I. had earlier been severed
from the case and he had already been charged separately, although before
the same court. On 16 October 1996 the Białystok Regional Court convicted
A.I. of handling stolen goods and sentenced him to 1 year of imprisonment
and a fine. That judgment became final on an unspecified later date.

B. The second trial

37. On 31 October 1996 the Sokółka District
Prosecutor filed a new bill of indictment against the applicant with
the Białystok Regional Court. The applicant was charged with handling
stolen goods of a significant value. The charge was phrased as follows:

“... that on 3 April 1994 in Łódź, acting
together and in agreement with A.I. assisted J.S.-T. to sell a “Mercedes-Benz
200E” car registered under number MUD 9552 valued at 850,000,000 [old]
Polish zlotys ...[and, in particular] knowing that the car had been
obtained by crime, hired A.I. to take that car abroad...”

The prosecution called the following witnesses:
A.I. (at that time detained on remand), J.I. (A.I.’s father who had
already been heard at the original trial), B.P. (the applicant’s partner
who had already refused to testify at the original trial), M.A. (the
officer of the Border Guards who had stopped A.I. on the border and
who had already been heard at the original trial), P.P. (an officer
of the Border Guards), and G.O, M.J., T.M. and Z.D. (police officers
from the Sokółka District Police).

38. On 19 November 1996 the Białystok Regional
Court transmitted the case for examination by the Łódź Regional Court.
On 31 January 1997 that latter court requested the Łódź Court of
Appeal that the case be transmitted back to the Białystok Regional
Court. On 11 February 1997 the Court of Appeal ruled that the case should
be examined by the Łódź Regional Court.

39. The Łódź Regional Court held hearings on
23 April and 2 June 1997. On the latter date the Regional Court gave
judgment. It convicted the applicant as charged and sentenced him to
18 months’ imprisonment suspended on probation for 3 years and a fine
of 2,000 new Polish zlotys (PLN).

The reasoning for the judgment read, in so far
as relevant:

“On 2 April 1994 J.S.-T., who had a permanent
residence in San Francisco, hired a Mercedes 200 E from the Sixt-Budget
company in Frankfurt. The car was hired for a period from 2 to 10 April
1994. The rental agreement included a ban on driving the car to the
countries of Eastern Europe, Denmark [and] Italy (p. 13).

On 3 April 1994 J.S.-T. accompanied by a P.M.
arrived at Łódź in the hired car. In Łódź they met the defendant
Jan Gossa, an acquaintance of P.M. The defendant proposed to take the
car abroad to former USRR, where it would be sold. He [the defendant]
stated that he knew a person who was willing to drive the car. The amount
received from the sale was to be shared.

On the same day the defendant put J.S.-T. in
contact with A.I. The meeting took place in the car park, where J.S.-T.
handed the car documents to AI. AI left the car park in the “Mercedes”
(statements of J.S.-T., pp.93-94).

On 4 April 1994 at 2.40 a.m. A.I. arrived at
the Kuźnica Białostocka road border check-point and attempted to cross
the Polish-Belarusian border in the Mercedes 200 E. During the border
control the officers of the Border Guards decided to check if the car
was being searched for in Germany. They were alerted by the fact that
A.I. declared that he was travelling as a tourist to Moscow and Sochi,
but did not have any luggage. In addition, after having verified internal
records, it was established that he [A.I.] had previously crossed the
border driving a different car.

On 4 April 1994 at 1.40 p.m. information was
received from the Kołbaskowo border check-point that the car was appropriated
to the detriment of the Sixt-Budget rental company (p.7). The value
of the Mercedes amounts to approximately PLN 85,000. It was returned
to the company, which on 4 April 1994 had notified that the car was
appropriated.

By a final judgment of the Białystok Regional
Court of 16 October 1996 ... A.I. was convicted of the offence specified
in Article 215 § 2 of the Criminal Code, consisting in the fact that
on 3 April 1994 in Łódź he had assisted J.S.-T. in selling a “Mercedes-Benz
200E” car registered under number MUD 9552 valued not less than 85,000
PLN to the detriment of the company Sixt-Budget GmbH, in that knowing
that the car had been obtained by crime he took it with a view to driving
it abroad and was sentenced to 12 months’ imprisonment and a fine
of PLN 5,000 (case file no. III K 132/96).

The defendant Jan Gossa did not confess to the
act with which he had been charged. He refused to give evidence before
the court, and thus the court revealed his statements made during the
investigation.

...

The court did not consider the applicant’s
statements credible. He was questioned on few occasions and [each time]
he made differing statements. Those statements vary in essential respects:
as to acquaintance with J.S.-T., as to contacts with her and as to reasons
for handing the car to A.I. If the applicant’s evidence given at the
[original] trial that he had had nothing to do with the attempted taking
of the “Mercedes” abroad was to be considered credible, then the
defendant would have had no reasons to provide, directly after his arrest,
false information, [which was] different from the version [of events]
which he had eventually presented.

The court, when determining the facts of the
case, considered credible the statements made by J.S.-T, questioned
as a suspect, on 5 May 1994. In those statements, J.S.-T. had presented
in detail her contacts with the defendant and A.I. Her statements are
logical and convincing. She was questioned in the presence of an interpreter
and her lawyer. She had unrestrained freedom to express herself. The
facts stated by her do not only incriminate the defendant and A.I.,
but they also confirm her guilt.

Those statements do not lose their credibility
on account of the fact that they differ from J.S.-T.’s statements
made directly after her arrest, namely that the defendant without her
consent had lent the car to his friend. He [the defendant] had the car
keys because he had parked the car in the car park. That version of
events, although similar with the defendant’s first statement, is
not credible.

A.I. saw the rental agreement when taking the
car. A.I. has lived in Germany for 8 years and could not have any difficulties
in understanding the clause in the agreement which forbade driving the
car to the countries of Eastern Europe. J.S.-T. also knew the content
of the rental agreement, and thus was aware of this ban. The next assertion
of the defendant and A.I. that the latter was to drive the car to Minsk
or Vilnius on her [J.S.-T.’s] instructions did not find any support
in the evidence. A.I. at the time of his arrest on the border had stated
that his destination was Moscow or Sochi, so completely different destinations
[from those previously referred to].

In the light of the evidence obtained in the
case the applicant’s guilt does not raise any doubts. It was the defendant
who was the mastermind of the sale of the car abroad. The amount received
from the sale was to be shared.

The defendant was fully aware that J.S.-T. was
not the owner of the car. She resided permanently in the United States.
She drove to Łódź in the hired Mercedes which was registered in Germany.
J.S.-T. was a party to the rental agreement and she gave her consent
to the sale of the car. She also handed over the documents and the car
keys to A.I. to whom she had been directed and put in contact with by
the defendant. A.I. was to drive the car abroad. At the moment of the
handing of the car to A.I. it was appropriated to the detriment of the
Sixt-Budget company, the owner of the car.

The defendant’s actions constituted [the offence
specified in] Article 215 § 2 of the Criminal Code. The defendant,
acting together and in agreement with A.I. assisted J.S.-T. in selling
a “Mercedes-Benz 200E” car registered under number M-UD 9552 valued
not less than 85.000 PLN ... [and, in particular] knowing that the car
had been obtained by crime, hired A.I. to take that car abroad...”

40. The applicant and the prosecutor appealed.
The applicant alleged a breach of his defence rights and of a number
of procedural provisions. He stressed that he had been deprived of any
opportunity to challenge the statements of J.S.-T. made before the prosecutor
and to cross-examine her. He also maintained that the authorities had
made no real attempt to secure the attendance of that witness before
the court.

41. On 13 November 1997 the Łódź Court of Appeal
upheld the conviction but partly altered the sentence imposed. It raised
the fine originally imposed to PLN 6,000. The reasoning for that judgment
read, in so far as relevant:

“... The alleged breach of [the applicant’s]
procedural rights cannot be upheld. The legal grounds for declining
to hear J.S.-T. before the court are laid down in Article 337 §§ 1
and 2 of the Code of Criminal Procedure. Under that provision, the court
may – even if the parties object – decline to take measures to summon
a witness and confine itself to reading out the records of statements
previously given by him or her as a defendant or suspect. The application
of that provision is an exception to the rule of the direct examination
of witnesses and does diminish the accused person’s defence rights,
in particular in situations where there has been no prior confrontation
between him and a witness whose testimony is later read out. It must
however be stressed that Article 337 of the Code of Criminal Procedure
does not oblige the court to exhaust all possibilities of producing
a witness from abroad at the trial, even if he or she resides in a neighbouring
country. ... Of course, the trial court is empowered, apart from the
application of the measure under Article 337..., to make efforts to
ensure the direct examination of a witness from abroad. But those efforts
make sense only if there are prospects of success. It is known – also
to the author of the appeal – that the [previous] attempts made by
the court in that respect were futile and that future ones would fail.
As early as 1995 the Regional Court asked the Embassy of the United
States of America for information as to whether J.S.-T. lived at the
address that she had supplied. The reply was evasive and should be interpreted
as a refusal to furnish any information on that matter. A further confirmation
of the firmness of that position is found in the letter of the Polish
diplomatic service (see the letter of the Consul General of the Republic
of Poland in Los Angeles, p. 482).

A pre-condition for securing an appearance of
a witness from abroad is that the authority conducting the proceedings
knows his or her address. Bearing in mind the obligation to observe
all procedural rules attached to summoning a witness from a foreign
country, a summons cannot be sent if his or her address is unknown or
if it is clear that the address is false. It that context, it should
be recalled that the applicant’s “private” enquiries were to no
avail (see ... the letter of 7 October 1996...).

In conclusion and having regard to the grounds
for the appeal, the [trial] court would not have been able to satisfy
the requirement of the “proper and effective summoning of the witness
J.S.-T. for the trial”. Consequently, this argument is ill-founded
and, indeed, this court could have stopped at this point because the
appellant’s further arguments do not concern the court’s actions
but the actions of the investigative authorities and, also, the appellant
does not challenge the logic of the conclusion reached by the trial
court. Yet there is a need to make the following remarks.

First of all, J.S.-T. was released because she
put up bail of PLN 10,000. Until that time, that is to say, for a month,
she was in custody. The [applicant] was treated in the same way but
on more favourable conditions: he was released after 17 days and the
security in question was PLN 8,000.

Secondly, evidence obtained under Article 337
must be assessed with a particular thoroughness. The assessment of J.S.-T.’s
testimony must be very careful, not least because she was charged with
theft of the car in question and supplied a false address. The Regional
Court, did, however, manage the task. The best proof is the fact that
the [appellant] does not even try to challenge the arguments relating
to J.S.-T.’s testimony, which are presented in the reasoning of the
contested judgment. It can only be recalled that the trial court took
notice of the circumstances surrounding the last questioning of J.S.-T.
(by the prosecutor and in the presence of her lawyer) and of the importance
of those statements for her criminal responsibility. The court of first
instance did not overlook the fact that those statements differed from
the previous ones. There is no material proof to conclude that her statements
incriminating [the applicant] were made in consequence of her agreement
with the investigating authority and, in particular, that they were
the price for her release. If her release can be looked on from this
angle, the price for her release – although lawful – was the security
in question.

Apart from the above-mentioned arguments of the
trial court, there is one more reason to believe J.S.-T. and not to
believe [the applicant]. His subsequent statements differ in respect
to a number of principal points, points that were enumerated by the
trial court. That court rightly noted that [the applicant], when questioned
for the first time, had no reason to present a version of events that
differed from those later presented. That was decisive for the trial
court when, in making a choice between [the applicant’s] statements
and the last version presented by J.S.-T., it rejected his testimony.
She also changed her statements but she had an interest in concealing
the truth. Yet, if [the applicant] was not in any criminal conspiracy
with other persons involved in the case, he had no reason to conceal
the true circumstances capable of showing that he was not involved in
the activities of those persons.

The applicant’s letter to the court dated 17
July 1997 reinforces the conclusions reached by the Regional Court rather
than supporting his own credibility. A new circumstance emerges [from
that letter], namely that the car in question was to return from Minsk
(so, it was to return to Poland and then to Frankfurt am Main, where
it had been hired) with medicines for P.M. So, there was no car theft,
and therefore no assistance in selling property obtained by crime. Multiplying
different versions results in none of them being considered credible.

Two further, significant elements should be added
to the arguments of the trial court.

A.I., when heard by the prosecutor on 6 April
1994, said, among other things, that “... [the applicant] came and
offered me to get paid – he asked whether I would drive a “Mercedes”
to Minsk since his acquaintance was to deliver a hired car there.”
[That] witness both earlier and in the present case, in [the applicant’s]
presence, confirmed those statements and [the applicant] did not object.
[The applicant] himself stated that he suggested A.I. as a driver because
he had a German passport. Of course, [the applicant] knew of the arrival
of the car on German licence plates. If one combines all these facts
which, given [the applicant’s] more than average intelligence and
the fact that his decisions are well considered (see the psychologist’s
report, pp. 138-139) presented [him] with an exceptionally easy task,
it must be concluded that [the applicant] had full knowledge and fulfilled
all elements [i.e. had the necessary actus reus and mens rea] for the offence in question.

Since, for all the above reasons, the assessment
made by the court of first instance was compatible with the [principles
laid down in] Article 4 § 1 of the Code of Criminal Procedure and consistent
with the principles of logical thinking and common sense, no grounds
for allowing the [applicant’s] appeal have been found. ...”

42. On 9 December 1997 the applicant was served
with the written grounds of the judgment of the Court of Appeal. On
6 January 1998 he filed a cassation appeal with the Supreme Court (Sąd Najwyższy),
alleging a breach of Article 6 § 3 (d) of the Convention in that he
had been deprived of an opportunity to examine, or have examined, the
principal witness against him.

43. On 18 December 1998 the applicant wrote to
the Supreme Court and asked for a hearing date to be fixed. On 23 December
1998 the Supreme Court replied as follows:

“... acting on the President of the Section’s
instruction, I should inform you that dates for hearings are fixed depending
on the date on which a given cassation appeal has been lodged with the
Supreme Court and that, at present, the [average] period between the
date of the filing of a cassation appeal and the date of a hearing amounts
to some 2 years and 6 months. Given that your ... cassation appeal was
received at the Supreme Court’s registry on 19 February 1998, it will
be heard not earlier than in 2000.”

44. The Supreme Court examined the cassation
appeal on 1 December 2000 and dismissed it as being obviously groundless.
It decided, pursuant to Article 535 § 2 of the Code of Criminal Procedure,
not to provide written grounds for its decision.

II. RELEVANT DOMESTIC LAW

45. When the applicant was tried, the rules governing
the assessment and admissibility of evidence were contained in the Code
of Criminal Procedure of 1969 (“the 1969 Code”) (Kodeks postępowania karnego). The Code is no longer in force.
It was repealed and replaced by the Law of 6 June 1997 (commonly referred
to as the “New Code of Criminal Procedure”), which entered into
force on 1 September 1998.

Article 4 § 1 of the 1969 Code provided:

“Judges shall rule on the basis of their conviction
deriving from evidence obtained and founded on their free assessment
of evidence [and they shall] draw on knowledge and life experience.”

Article 337 provided, in its relevant part:

“1. If a witness has groundlessly refused to
testify, or has given testimony different from the previous one, or
has stated that he does not remember certain details, or if he is abroad,
or a summons cannot be served on him, or if he has not appeared on the
ground of irremovable obstacles or if the president of the court has
declined to summon him pursuant to Article 296 § 2 [i.e. because upon
the lodging of the bill of indictment the prosecution has asked that
the records of his testimony be read out at trial], the records of his
previous statements may be read out, [regardless of whether they] have
been made in the investigation or before the court in the case in question
or in another case or in any other procedure provided for by the law.

2. In the circumstances referred to in paragraph
1, the records of evidence that a witness has given when heard as an
accused may also be read out.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6
§§ 1 AND 3 (d) OF THE CONVENTION

46. The applicant complained that his trial had
been unfair in that he had been unable to examine a witness whose statements
had served as the main basis for his conviction. The relevant parts
of Article 6 §§ 1 and 3 (d) provide as follows:

“1. In the determination of ... any criminal
charge against him, everyone is entitled to a fair ... hearing ... by
[a] ... tribunal ...

...

3. Everyone charged with a criminal offence has
the following minimum rights:

...

(d) to examine or have examined witnesses against
him and to obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him;

...”

A. The parties’ submissions

47. The applicant maintained that his right to
a fair trial had been violated. He argued that in the present case there
had been no evidence other than the statements of J.S.-T. which had
served as the basis for his conviction. He further submitted that the
rights of the defence had been breached since at no stage of the proceedings
had he had a possibility to put questions to that witness.

48. The Government admitted that during the entire
course of the criminal proceedings against the applicant, he had not
had an opportunity to examine J.S.-T., who had been a witness against
him. They submitted that a testimony of that witness had been read out
at the hearing held on 2 June 1997 and, undoubtedly, it had been taken
into account by the Łódź Regional Court in its judgment of the same
date. However, in the particular circumstances of the present case,
the Government maintained that despite the fact that the applicant could
not examine J.S.-T. in the course of the impugned proceedings, his defence
rights had not been infringed to such an extent as to amount to a breach
of Article 6 §§ 1 and 3(d) of the Convention.

49. The Government underlined that J.S.-T. had
been residing in the USA and, as it appeared after her release, she
had supplied the prosecuting authorities with a false address. The Łódź
Court of Appeal, in its judgment of 13 November 1997, had clearly stated
that all “attempts made by the court [in order to secure the personal
appearance of that witness at the hearing]” were futile and ... that
future ones would fail”. Furthermore, in the written grounds of its
judgment of 13 November 1997, the Court of Appeal referred to the information
obtained from the Embassy of the United States of America in Poland
which “should be interpreted as a refusal to furnish any information
on that matter”. The Government emphasised that, despite the efforts
made by the relevant authorities, it was impossible to secure the appearance
of J.S.-T. at the hearing. They further maintained that in such a case
“it was open to the national court, subject to the rights of the defence
being respected, to have regard to the statements obtained by the police
... in particular if corroborated by other evidence before it” (cf. Artner v. Austria,
judgment of 28 August 1992, Series A no. 242-A, § 22).

50. Furthermore, the Government contended that
the testimony of J.S.-T. had not been the only evidence on which the
national courts had based the applicant’s conviction. They argued
that the statements of J.S.-T. had been corroborated by other evidence.
In particular, the Łódź Court of Appeal referred in this respect
to the statements of A.I. The Government underlined that the applicant
had been confronted with A.I. in the course of the investigation and
that the applicant had examined him at the hearing. They also submitted
that there had been other items of documentary evidence which had formed
the basis of the applicant’s conviction. The Government also stressed
that the evidence obtained from J.S.-T. had been assessed by the courts
with particular diligence.

B. The Court’s assessment

1. Applicable principles

51. As the requirements of Article 6 § 3 are
to be seen as particular aspects of the right to a fair trial guaranteed
by Article 6 § 1, the Court will examine the complaint under Article
6 §§ 1 and 3 (d) taken together (see, among many other authorities, Van Mechelen
and Others v. the Netherlands, judgment of 23 April 1997, Reports of Judgments
and Decisions 1997-III, p. 711, § 49).

52. The Court reiterates that the admissibility
of evidence is primarily a matter for regulation by national law and
as a general rule it is for the national courts to assess the evidence
before them. The Court’s task under the Convention is not to give
a ruling as to whether statements of witnesses were properly admitted
as evidence, but rather to ascertain whether the proceedings as a whole,
including the way in which evidence was taken, were fair (see, among
other authorities, Van Mechelen and Others, cited above, p. 711, § 50, and Doorson v. the
Netherlands, judgment of 26 March 1996, Reports 1996-II, p. 470, § 67).

53. All the evidence must normally be produced
at a public hearing, in the presence of the accused, with a view to
adversarial argument. There are exceptions to this principle, but they
must not infringe the rights of the defence; as a general rule, paragraphs
1 and 3 (d) of Article 6 require that the defendant be given an adequate
and proper opportunity to challenge and question a witness against him,
either when he makes his statements or at a later stage (see Van Mechelen and Others, cited above, p. 711, § 51, and Lüdi v. Switzerland,
judgment of 15 June 1992, Series A no. 238, p. 21, § 49).

54. As the Court has stated on a number of occasions
(see, among other authorities, Lüdi, cited above, p. 21, § 47), it may prove necessary in
certain circumstances to refer to statements made during the investigative
stage. If the defendant has been given an adequate and proper opportunity
to challenge the statements, either when made or at a later stage, their
admission in evidence will not in itself contravene Article 6 §§ 1
and 3 (d). The corollary of that, however, is that where a conviction
is based solely or to a decisive degree on statements that have been
made by a person whom the accused has had no opportunity to examine
or to have examined, whether during the investigation or at the trial,
the rights of the defence are restricted to an extent that is incompatible
with the guarantees provided by Article 6 (see Unterpertinger v. Austria, judgment of 24 November 1986, Series
A no. 110, pp. 14-15, §§ 31-33; Saïdi v. France, judgment of 20 September 1993, Series A no.
261-C, pp. 56-57, §§ 43-44; Lucà v. Italy, no. 33354/96, § 40, 27 February 2001; Solakov v. the
former Yugoslav Republic of Macedonia, no. 47023/99, § 57, ECHR
2001-X).

55. With respect to statements of witnesses who
proved to be unavailable for questioning in the presence of the defendant
or his counsel, the Court recalls that paragraph 1 of Article 6 taken
together with paragraph 3 requires the Contracting States to take positive
steps so as to enable the accused to examine or have examined witnesses
against him (see, Sadak and Others v. Turkey, nos. 29900/96, 29901/96, 29902/96
and 29903/96, § 67, ECHR 2001-VIII). However, impossibilium nulla est obligatio; provided that the authorities
cannot be accused of a lack of diligence in their efforts to award the
defendant an opportunity to examine the witnesses in question, the witnesses’
unavailability as such does not make it necessary to discontinue the
prosecution (see, in particular, Artner v. Austria, judgment of 28 August 1992, Series A no. 242-A,
p. 10, § 21; Scheper v. the Netherlands (dec.), no. 39209/02, 5 April 2005; Mayali v. France,
no. 69116/01, § 32, 14 June 2005; Haas v. Germany (dec.), no. 73047/01, 17 November 2005). Evidence
obtained from a witness under conditions in which the rights of the
defence cannot be secured to the extent normally required by the Convention
should, however, be treated with extreme care (see Visser v. the Netherlands, no. 26668/95, § 44, 14 February 2002; S.N. v. Sweden,
no. 34209/96, § 53, ECHR 2002-V). The defendant’s conviction may, in
any event, not solely be based on the statements of such a witness (see,
in particular, Mayali, cited above, § 32).

56. In that regard, the fact that the statements
were, as here, made by a co-accused rather than by a witness is of no
relevance. In that connection, the Court reiterates that the term “witness”
has an “autonomous” meaning in the Convention system (see Vidal v. Belgium, judgment of 22 April 1992, Series A no. 235-B,
pp. 32-33, § 33). Thus, where a statement may serve to a material degree
as the basis for a conviction, then, irrespective of whether it was
made by a witness in the strict sense or by a co-accused, it constitutes
evidence for the prosecution to which the guarantees provided by Article 6
§§ 1 and 3 (d) of the Convention apply (see, mutatis mutandis, Ferrantelli and Santangelo v. Italy, judgment of 7 August 1996, Reports
1996-III, pp. 950-51, §§ 51-52).

2. Application of the above principles

57. The Court notes that in convicting the applicant, the domestic
courts relied on the statements given by J.S.-T. at the investigative
stage of the proceedings and A.I.’s statements given both before the
prosecutor and the courts. They further relied on the applicant’s
statements at the investigative stage, having regard to the fact that
the applicant refused to give evidence before the courts during his
second trial. At no stage of the proceedings was a confrontation organised
between the applicant or his counsel and J.S.-T.

58. The Court observes that the authorities made
efforts to secure J.S.-T.’s attendance at the hearing, who had provided
the prosecution service with a false address in the United States. It
notes that as early as 19 May 1995 the Łódź Regional Court submitted its second request
to the Embassy of the United States of America in Warsaw, asking for
confirmation whether J.S.-T. had lived at the address provided to the
prosecution service. In their reply, the Consular Department of the
Embassy limited itself to stating that, according to their knowledge,
J.S.-T. did not reside in Poland. Furthermore, it appears from the written
reasoning of the Court of Appeal’s judgment of 13 November 1997 that
the authorities made an unsuccessful inquiry concerning J.S.-T.’s
place of residence with the Consulate General of the Republic of Poland
in Los Angeles. However, despite those efforts, the authorities were
unable to determine the actual address of J.S.-T. which was a precondition
for serving a summons on the witness residing abroad. Thus, the domestic
courts could not secure the presence of J.S.-T. at the hearing.

59. The Court considers that it was not for the
Polish authorities to make inquiries to establish the whereabouts of
a person residing on the territory of a foreign State. By requesting
the Embassy of the United States of America on two occasions to confirm
the address of J.S.-T. and making the inquiry with the Consulate of
the Republic of Poland in Los Angeles, those authorities took steps
to establish the address of that witness. Since their efforts were to
no avail, the national courts were not in a position to serve a summons
on J.S.-T. abroad or to request that she be heard as a witness by the
authorities of a foreign State. Moreover, they had no alternative but
to rely on the information which they could receive from sources such
as the Embassy of the United States of America in Poland and the Consulate
General of the Republic of Poland in the USA, since J.S.-T. was a national
of the United States. Under these circumstances, the Polish authorities
cannot be accused of a lack of diligence (see, Calabro v. Italy and Germany (dec.), no. 59895/00, ECHR 2002-V).

60. The Court readily agrees that it would have
been preferable for J.S.-T. to have been heard in person, but her unavailability
could not be allowed to block the prosecution, the appropriateness of
which was, moreover, not for the European Court to determine (see Asch v. Austria, judgment of 26 April 1991, Series A no. 203, p. 10, § 28). Similarly, the
Court does not consider it appropriate to question the Sokółka District
Prosecutor’s decision of 6 May 1994 to release J.S.-T. on bail.

61. The Court finds that in view of the unsuccessful
efforts to establish J.S.-T.’s address and the subsequent impossibility
to summon her, it was open to the national courts, subject to the rights
of the defence being respected, to have regard to J.S.-T.’s statements
obtained by the prosecution, in particular in view of the fact that
they could consider those statements to be corroborated by other evidence
before them.

62. Furthermore, the Court observes that the applicant
had ample opportunities to challenge J.S.-T.’s version of events and
to put his own version to the courts during the re-trial, but he chose
not to do so. Thus, the courts when determining the charges against
him had to have recourse to his statements given at the investigative
stage of the proceedings. However, since those statements significantly
varied in respect of certain crucial details, the domestic courts considered
that their credibility was undermined (see, mutatis mutandis, Asch v. Austria, cited above, § 29). In addition, the Court
is satisfied that the domestic courts assessed J.S.-T.’s statements
with the particular care required. They took into consideration different
factors which were of relevance when it came to assessing the credibility
of J.S.-T. and the veracity and the weight to be given to her statements
(see, mutatis
mutandis, Solakov, cited above, § 62).

63. In any event, the Court considers that the
applicant’s conviction was not based solely or to a decisive degree
on J.S.-T.’s statements. Both the Regional Court and the Court of
Appeal had regard to evidence given by A.I., the applicant’s co-accused.
The Regional Court in its judgment of 2 June 1997 found that the applicant’s
assertion that A.I. would drive the car to Vilnius or Minsk was contradicted
by A.I.’s statements at the time of his arrest on the border check-point.
Moreover, the Court of Appeal in its judgment of 13 November 1997 noted
that A.I. had stated during questioning by the prosecutor on 6 April
1994 that the applicant had offered him payment and had asked whether
he would drive a Mercedes, which had been hired by the applicant’s
friend, to Minsk. The Court of Appeal emphasised that A.I. had confirmed
that testimony at the hearing before the Regional Court and that the
applicant had not challenged that evidence, despite having all possibilities
to do so.

64. Having regard to the proceedings as a whole,
the Court considers that the lack of a possibility to examine J.S.-T.
at the hearing did not, in the circumstances of the case, infringe the
rights of the defence to such an extent that it constituted a breach
of paragraphs 1 and 3 (d) of Article 6, taken together (mutatis mutandis, Artner v. Austria, cited above, pp. 10-11, §§ 22-24). The
Court cannot, therefore, find that the applicant’s trial as a whole
was unfair.

65. Accordingly, there has been no violation of
Article 6 §§ 1 and 3 (d) of the Convention.

II. ALLEGED VIOLATION OF ARTICLE
6 § 1 OF THE CONVENTION AS REGARDS THE LENGTH OF PROCEEDINGS

66. The applicant complained that the length of
the proceedings had been incompatible with the “reasonable time”
requirement, laid down in Article 6 § 1 of the Convention, which reads
as follows:

“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a reasonable
time by [a] ... tribunal...”

67. The Government contested that argument.

68. The period to be taken into consideration
began on 5 April 1994 and ended on 1 December 2000. It thus lasted 6
years and nearly 8 months for three levels of jurisdiction.

69. The Court reiterates that the reasonableness
of the length of proceedings must be assessed in the light of the circumstances
of the case and with reference to the following criteria: the complexity
of the case, the conduct of the applicant and the relevant authorities
(see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR
1999-II)

70. The Court has frequently found violations
of Article 6 § 1 of the Convention in cases raising issues similar
to the one in the present case (see Pélissier and Sassi, cited above).

71. Having examined all the material submitted
to it, the Court considers that the Government have not put forward
any fact or argument capable of persuading it to reach a different conclusion
in the present case. It observes, in particular, that there was a nearly
35-month period of inactivity in the proceedings before the Supreme
Court between the date of lodging the applicant’s cassation appeal
and the date of delivery of the judgment. The Court can accept that
some delays in the procedure before
the Supreme Court could be explained by the fact that at the
material time the Supreme Court had to deal with an increased workload
(see, in respect of civil cases, Kępa
v. Poland (dec.), no. 43978/98, 30 September 2003). Nevertheless,
in the present case the applicant’s cassation appeal lay dormant in
the Supreme Court for nearly 35 months, which constitutes an unreasonable
delay (see Domańska v. Poland, no. 74073/01, § 32, 25 May 2004). Having
regard to its case-law on the subject, the Court considers that in the
instant case the length of the proceedings was excessive and failed
to meet the “reasonable time” requirement.

72. There has accordingly been a breach of Article
6 § 1.

III. APPLICATION OF ARTICLE 41 OF
THE CONVENTION

73. Article 41 of the Convention provides:

“If the Court finds that there has been a violation
of the Convention or the Protocols thereto, and if the internal law
of the High Contracting Party concerned allows only partial reparation
to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”

A. Damage

74. By a letter of 26 June 2003 the applicant
claimed 21,350 Polish zlotys (PLN) in respect of pecuniary damage and
PLN 150,000 in respect of non-pecuniary damage, referring to the alleged
violation of his right to a fair trial and to the alleged violation
of the right to have his case examined within a reasonable time. He
reiterated those claims in his letter of 20 May 2006.

75. The Government did not comment on the applicant’s
claims.

76. The Court has found no violation in respect
of the applicant’s complaint under Article 6 §§ 1 and 3 (d) and
therefore no award in this respect can be made. On the other hand, the
applicant has succeeded in respect of his second complaint, namely that
his case was not heard within a reasonable time. However, the Court
does not discern any causal link between the violation found and the
pecuniary damage alleged; it therefore rejects this claim. Nevertheless,
it considers that the applicant certainly suffered non-pecuniary damage,
such as distress and frustration, on account of the protracted length
of the proceedings, which cannot be sufficiently compensated by the
above finding of a violation. Taking into account the circumstances
of the case and making its assessment on an equitable basis, the Court
awards the applicant EUR 1,500 under that head.

B. Costs and expenses

77. The applicant made no claim for costs and
expenses.

C. Default interest

78. The Court considers it appropriate that the
default interest should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT

1. Holds by six votes to one that there has been no violation
of Article 6 §§ 1 and 3 (d) of the Convention;

2. Holds unanimously that there has been a violation of Article 6
§ 1 of the Convention in respect of the length of the proceedings;

3. Holds

(a) that the respondent State is to pay
the applicant, within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2 of the Convention, EUR
1,500 (one thousand five hundred euros) in respect of non-pecuniary
damage, to be converted into the national currency of the respondent
State at the rate applicable at the date of settlement, plus any tax
that may be chargeable;

(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the
above amount at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;

4. Dismisses unanimously the remainder of the applicant’s claim
for just satisfaction.

Done in English, and notified in writing
on 9 January 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of
Court.

Françoise Elens-Passos Nicolas Bratza Deputy Registrar President

In accordance with Article 45 § 2 of
the Convention and Rule 74 § 2 of the Rules of Court, the partly dissenting
opinion of Mr Casadevall is annexed to this judgment.

N.B.
F.E.-P.

PARTLY DISSENTING OPINION OF JUDGE CASADEVALL

(Translation)

I did not vote with the majority on point 1
of the operative provisions because, in my opinion, the fact that the
applicant was unable to examine or have examined the prosecution witness
on whose statements his conviction was mainly based also amounted to
a violation of Article 6 §§ 1 and 3 (d) of the Convention. To my mind
the authorities’ responsibility for that serious procedural shortcoming
is obvious for the following reasons.

1. The main prosecution
witness and co-defendant, J.S.-T., was arrested on 6 April 1994. For
a month she refused to make a statement. She agreed to do so, in the
presence of her lawyer, on 5 May 1994 and on the very next day (6 May)
the District Prosecutor, taking the view that “all necessary evidence
had been obtained” (see paragraph 20 of the judgment), ordered her
release on payment of approximately 2,500 euros bail. She then left
for the United States, after supplying a false address. It follows that
the witness was under the judicial authorities’ power and control
for a month.

2. The above facts
raise three questions:

(a) For what reason was no attempt made to confront
the applicant with the witness who was his co-defendant during those
thirty days?

(b) Why, after J.S.-T.’s statement on 5 May,
did the authorities not give the applicant, as a person charged with
a criminal offence, the opportunity to examine or have examined the
witness against him?

(c) Why was J.S.-T. released immediately on
the day after making her statement, thus frustrating one of the applicant’s
fundamental rights?

The Government did not provide any explanation,
and the Court for its part did not give these anomalies, though they
have serious implications for the rights of the defence, the attention
they deserve.

3. The Regional Court
acquitted the applicant at first instance for lack of evidence and precisely
because of the doubts raised by J.S.-T.’s statement. In that connection
the Regional Court pointed out in its judgment: “... when assessing
[her statements], it must be taken into account that they do not have
the quality of [witness] testimony given under pain [of being criminally
liable for perjury] but are the statements of a suspect with all the
consequences thereof, including the possibility that J.S.-T., for reasons
only known to herself, did not tell the truth or the whole truth”
(see paragraph 31 of the judgment). On that basis I consider that in
the present case, notwithstanding the fact that the term “witness”
has an autonomous meaning within the Convention system, the distinction
between the statements of a witness, in the true sense of the word,
and those of a

co–defendant (who
had been released and had left the country leaving a false address)
was not without importance.

4. I consider that
the arguments which led the majority to find no violation do not stand
up to the general principles applicable in the case, set out in paragraphs
51 to 56 of the judgment. The majority have attached particular importance
(in paragraphs 58 and 59 of the judgment) to all the unsuccessful efforts
made by the Polish judicial authorities to find out the witness’s
address in the United States so that she could be summoned. On the other
hand, they do not appear to have been troubled by the fact that this
witness was under the control of the same authorities for a month or
by the fact that those authorities decided to release her immediately
after she had made her statement, whereas – without any particular
effort – they could have enabled the applicant to exercise the right
to examine or have examined a key prosecution witness, as guaranteed
by Article 6 of the Convention.